1. Intellectual Property Law and the Arts A Discussion of Copyright Law, Its History and Its Relationship to Twenty-First Century Creativity Rick Shriver Ohio University 2008

2. A Brief Pre-History of Copyright Prior to the invention of the printing press, printed matter was the nearly exclusive domain of the literate nobilityPrior to the invention of the printing press, printed matter was the nearly exclusive domain of the literate nobility Printed materials were rare, expensive and of no interest to the largely illiterate populacePrinted materials were rare, expensive and of no interest to the largely illiterate populace

3. A Brief Pre-History of Copyright The invention of the movable type press made literacy a worthwhile endeavorThe invention of the movable type press made literacy a worthwhile endeavor Precipitated the need for copyright protectionPrecipitated the need for copyright protection Inexpensive copies of the limited literary works, including the BibleInexpensive copies of the limited literary works, including the Bible The interests of the publisher, not the creator (author), were paramountThe interests of the publisher, not the creator (author), were paramount

4. A Brief Pre-History of Copyright In the sixteenth century monopolies were granted to certain publishers for a period of two years, during which they had the exclusive rights to publish specified worksIn the sixteenth century monopolies were granted to certain publishers for a period of two years, during which they had the exclusive rights to publish specified works

5. A Brief Pre-History of Copyright The modern copyright can be traced to the copyright act of 1709, or Statute of AnneThe modern copyright can be traced to the copyright act of 1709, or Statute of Anne The Statute of Anne extended copyright protection for 14 years to the authors of all newly created works, and the copyright was renewable for an additional 14 year term, for a total of 28 yearsThe Statute of Anne extended copyright protection for 14 years to the authors of all newly created works, and the copyright was renewable for an additional 14 year term, for a total of 28 years

6. A Brief Pre-History of Copyright The first piece of legislation in the United States which specifically addressed intellectual property rights was the Copyright Act of 1790The first piece of legislation in the United States which specifically addressed intellectual property rights was the Copyright Act of 1790 The Copyright Act of 1909 offered the first significant update of the 1790 ActThe Copyright Act of 1909 offered the first significant update of the 1790 Act Works created prior to 1976 are still governed by the provisions of the 1909 ActWorks created prior to 1976 are still governed by the provisions of the 1909 Act

7. The Copyright Act of 1976 The 1976 Act provides the foundation for all present intellectual property rights in the United StatesThe 1976 Act provides the foundation for all present intellectual property rights in the United States Extended copyright protection to recordings, motion pictures and other twentieth century technologiesExtended copyright protection to recordings, motion pictures and other twentieth century technologies Extended the period of copyright protection to the lifetime of the creator, plus fifty years after the creators deathExtended the period of copyright protection to the lifetime of the creator, plus fifty years after the creators death

8. The Copyright Act of 1976 Articulated the doctrine of fair useArticulated the doctrine of fair use Included the consideration of the effect of the use, not just its intentIncluded the consideration of the effect of the use, not just its intent

9. The Copyright Term Extension Act of 1998 The Sonny Bono Copyright Extension ActThe Sonny Bono Copyright Extension Act The Mickey Mouse protection actThe Mickey Mouse protection act Extends copyright protection to the life of the author plus 70 yearsExtends copyright protection to the life of the author plus 70 years Extended copyright protection for works that were published before 1978, and that were still protected by copyright in 1998Extended copyright protection for works that were published before 1978, and that were still protected by copyright in 1998

10. The Digital Millennium Copyright Act (1998) An effort to bring the U.S. into compliance with World Intellectual Property Organization (WIPO) treatiesAn effort to bring the U.S. into compliance with World Intellectual Property Organization (WIPO) treaties –Title I requires that analog video recorders are equipped with a copy protection technology –Title II creates a so-called safe harbor for online providers –Title II also provides for take down notices

11. The Digital Millennium Copyright Act (1998) –Title III allows computer repairers to make temporary copies (backups) of copyrighted materials while working on computers –Title IV includes provisions for distance education, for libraries keeping copies of sound recordings, and for ephemeral recordings for the purposes of broadcast or re-transmission

12. Fair Use May be the most erratically interpreted aspect of copyright, therefore frequently raising concerns over its chilling effect on technologies and free speechMay be the most erratically interpreted aspect of copyright, therefore frequently raising concerns over its chilling effect on technologies and free speech

13. Fair Use According to U. S. Code fair use must consider:According to U. S. Code fair use must consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (4) the effect of the use upon the potential market for or value of the copyrighted work.

14. Fair Use It is illegal for a consumer to rent a DVD and invite six friends to view itIt is illegal for a consumer to rent a DVD and invite six friends to view it It is illegal for a consumer to copy a CD for a friends listeningIt is illegal for a consumer to copy a CD for a friends listening The use of an entire work for profit is legal when the use is parodyThe use of an entire work for profit is legal when the use is parody The courts have permitted the videotaping of entire programsThe courts have permitted the videotaping of entire programs

15. Common Law Copyright Common law copyright doctrine posited that the mere act of creation granted rights to the creatorCommon law copyright doctrine posited that the mere act of creation granted rights to the creator Once the work is fixed, or takes on some tangible form, the work is protectedOnce the work is fixed, or takes on some tangible form, the work is protected Adding a notice may strengthen the rights of the creatorAdding a notice may strengthen the rights of the creator

16. Trends in Regulation Accommodating technological changeAccommodating technological change –transmission and broadcasting, sound recordings, video recordings, computer software, satellite transmissions and Internet content Accommodating changing lifestyles of the American consumerAccommodating changing lifestyles of the American consumer –copying recordings for personal use, recording broadcasts for time-shifting, and duplicating software for back-up

17. Trends in Regulation Allowable uses of copyrighted materials in education have broadened - acknowledging of the role of technology in instructionAllowable uses of copyrighted materials in education have broadened - acknowledging of the role of technology in instruction Better understanding of technologyBetter understanding of technology –Copy protection schemes –Allowances to re-transmit radio broadcasts in restaurants and bars

18. Trends in Regulation Sampling and the doctrine of de minimis useSampling and the doctrine of de minimis use –the use of very small fragments of existing protected materials –lacks the specifics of how many seconds or beats are allowable

19. International Cultural differencesCultural differences –intellectual property is the property of the community, and not for the benefit of the individual Low risk to benefit ratioLow risk to benefit ratio High cost of coveted American-made productsHigh cost of coveted American-made products –U.S. media conglomerates are seen as profiteering global monopolies

20. International U.S. became a signatory to the Berne Conventions in 1998U.S. became a signatory to the Berne Conventions in 1998 U.S. joined the World Intellectual Property Organization (WIPO)U.S. joined the World Intellectual Property Organization (WIPO) The United States incorporated the WIPO treaty into the DMCA in 2000The United States incorporated the WIPO treaty into the DMCA in 2000

21. Attitudes Trends toward a more restrictive legal frameworkTrends toward a more restrictive legal framework Evidence of a backlashEvidence of a backlash –A new generation of creative professionals encouraging file sharing, development of open source software, and creation of works for the public domain.

22. Attitudes In the music industry, many emerging artists are offering their music free to web- based consumersIn the music industry, many emerging artists are offering their music free to web- based consumers Reacting to what has become the music industry establishmentReacting to what has become the music industry establishment More contemporary musicians view recorded music as part of marketing, with the real revenue stream coming from concert tickets sales and merchandisingMore contemporary musicians view recorded music as part of marketing, with the real revenue stream coming from concert tickets sales and merchandising

23. Attitudes Open source software has steadily grownOpen source software has steadily grown A reaction to the power and control of giant hardware and software manufacturers, who are seen as controlling the computer industryA reaction to the power and control of giant hardware and software manufacturers, who are seen as controlling the computer industry Electronic Frontier Foundation (EFF) argues against the chilling effect that restrictive intellectual property law has on creative endeavorElectronic Frontier Foundation (EFF) argues against the chilling effect that restrictive intellectual property law has on creative endeavor

24. Summary Protection of ownership shifted to the author/creatorProtection of ownership shifted to the author/creator Copyright protections extended for longer periods of timeCopyright protections extended for longer periods of time More rights to the creatorMore rights to the creator More restrictions on the uses of creative materialsMore restrictions on the uses of creative materials Embrace technological changeEmbrace technological change

25. Summary Specificity in defining allowable uses of protected materialSpecificity in defining allowable uses of protected material U.S. has become a partner in international agreementsU.S. has become a partner in international agreements Some view the restrictions on copyrighted materials as inhibiting free speechSome view the restrictions on copyrighted materials as inhibiting free speech Progressively more complex technology and increasingly high profits will assure that copyright law will continue to evolveProgressively more complex technology and increasingly high profits will assure that copyright law will continue to evolve